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Doc. 9105
31 May 2001
UNHCR and the 50th anniversary of the Geneva Convention
Activities of the Office of the United Nations High Commissioner for Refugees (UNHCR) in respect of the implementation of the 1951 Geneva Convention relating to the status of refugees and its 1967 Protocol: review on the occasion of the 50th anniversary of the Convention
Report
Committee on Migration, Refugees and Demography
Rapporteur: Mrs Manuela Aguiar, Portugal, Group of the European People's Party
Summary
The 50th anniversary of the 1951 Convention relating to the status of refugees provides an opportunity to remind member states of the Council of Europe of the close relationship they have with founding and promoting the international regime for the protection of refugees.
Conceived during the refugee crisis of the Second World War and therefore limited to refugees from that time and place, the 1951 Refugee Convention, today, is more than ever considered as the basic and universal instrument for ensuring effective refugee protection. Unfortunately, refugee problems have proved to be timeless and universal.
The Assembly wishes to commend UNHCR for its work on behalf of refugees and others in need of international protection and supports the process of Global Consultations on International Protection launched by this organisation in 2000 in order to revitalise the international protection regime and to address the current challenges.
The Assembly also urges those member states of the Council of Europe who are not parties to the Convention, Andorra, Moldova, San Marino and Ukraine, to accede to the 1951 Convention as soon as possible.
I. Draft recommendation
1. The 50th anniversary of the 1951 Convention relating to the status of refugees provides an opportunity to remind member states of the Council of Europe of the close relationship they have with founding and promoting the international regime for the protection of refugees.
2. The 1951 Refugee Convention was a response to the European refugee crisis of the Second World War and the Convention, as written, was limited to refugees from that time and place. Unfortunately, refugee problems have proved to be timeless and universal. European states were therefore among those who took the lead in drafting the 1967 Protocol relating to the status of refugees, in order to extend international protection to refugees regardless of their country of origin or date of displacement.
3. The 1951 Convention provides an internationally agreed definition of refugee, including conditions for terminating such status or excluding a refugee from it. It sets forth the rights and obligations of refugees as well as the specific obligations of the states. The most important right codified by the 1951 Convention is the right to be protected from refoulement, or forcible return to the country from which the refugee has fled.
4. During the last four decades, the Parliamentary Assembly regularly reviewed issues pertaining to the treatment of refugees and asylum seekers, trying to provide adequate solutions to the difficulties faced by the international protection regime. One of its latest recommendations (Recommendation 1440 (2000) on the restriction on asylum in the member states of the Council of Europe and the European Union) identified new trends in the refugee policies of its member states. The accession of new member states from central and eastern Europe to the Council of Europe and to the 1951 Convention has also brought about new challenges, not least in view of the number of persons who benefited from the opening of borders across the continent.
5. However, the causes of flight from countries of origin have not been so much altered by the changes, which occurred in Europe since 1989. While asylum seekers are now mixed with other categories of persons, the responses of member states to the increasing number of arrivals have been indiscriminate and the immigration measures put in place undoubtedly affect asylum seekers.
6. The Assembly notes with concern that the measures adopted by most of the member states of the Council of Europe have somewhat weakened the effective application of the 1951 Convention. Some measures envisaged by the European Union regarding common migration policies may compromise the full and fair implementation of the 1951 Convention. The Assembly therefore shares UNHCR's (United Nations High Commissioner for Refugees) concern over the quality of the protection provided by some legislations in force in Europe. As an organisation regrouping some of the key architects of the international protection regime, the Council of Europe should reflect on the consequences of such a trend.
7. Moreover, it must be stressed that the protection of refugees is an element of the protection of human rights, which is one of the primary responsibilities of the Council of Europe. In this regard the principles of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights, notably on the right not to be returned to places where there is a risk of mistreatment or on the guarantees relating to detention, have considerably reinforced and completed refugee law.
8. The Assembly also considers that public officials and media outlets should refrain from presenting asylum issues in a sensational way for the purpose of short-term political gains. The multiplication of discriminatory practices and racist attacks often targeted at refugees and asylum seekers and sometimes with tragic consequences is one of the repercussions of such misrepresentations. Instead, public authorities, along with non-governmental organisations and the media, should contribute to a better understanding of refugee flows and provide a fair picture of the situation and of the problems faced by these persons and by the communities which host them.
9. The Assembly wishes to acknowledge and support UNHCR for its work on behalf of refugees and others in need of international protection.
10. The Assembly is however concerned about contemporary challenges faced by states, the European Union, UNHCR, and non-governmental organisations in providing protection for refugees and others in need. It takes note that certain existing legal principles have been interpreted in an excessively restrictive fashion by some states and the European Union, and notes also that certain protection issues are not covered fully, or at all, by the 1951 Convention.
11. The Assembly considers that the initiative of UNHCR to launch multilateral discussions, the Global Consultations, on the situation of the international protection regime is an essential element for the revitalisation of asylum in Europe and in the world at large.
12. The Parliamentary Assembly therefore recommends that the Committee of Ministers:
a. continues to be supportive of the process of Global Consultations on International Protection launched by UNHCR in 2000 in order to revitalise the international protection regime and to address the current challenges;
b. keeps developing, in a constructive way through its appropriate committee, legal interpretations and policy opinions in the field of refugee law;
c. maintains a permanent dialogue with the European Union with the aim of preventing the incorporation of a restrictive interpretation of the provisions of the 1951 Convention into European Union legislation;
13. The Assembly also recommends that the Committee of Ministers urges its member states to:
a. consider, with a view to progressively integrating them into their legislation, the various recommendations made by the Parliamentary Assembly and the Ad hoc Committee of Experts on Legal Aspects of Territorial Asylum, Refugees and Stateless Persons (CAHAR) on issues relating to refugees and asylum seekers;
b. reaffirm that the 1951 Convention relating to the status of refugees (and the 1967 Protocol) constitute the foundation of international refugee law and as such, are pivotal in securing refugee protection;
c. accede to the 1951 Convention for those member states of the Council of Europe who are not parties to that Convention, these are Andorra, Moldova, San Marino and Ukraine;
d. reconsider the reservations made to some of the provisions of the 1951 Convention, notably those concerning the geographic application of the refugee definition and the extent of integration rights to be enjoyed by recognised refugees;
e. refrain from and remain vigilant towards excessive mis-representation of asylum and refugee issues;
f. welcome favourably and contribute actively to the Global Consultations on International Protection, notably by attending with high-level delegations the formal meeting of State Parties to the 1951 Convention, which will be held in Geneva (Switzerland) on 12 December 2001, and, by adopting a joint declaration.
II. Explanatory memorandum by Mrs Aguiar
1. Introduction
1. When in 1951 the International Refugee Organisation (IRO) was replaced by the Office of the United Nations High Commissioner for Refugees (UNHCR), the focus of the United Nations shifted from the emergency repatriation of the 21 million post war European refugees to the setting up of a more long term oriented instrument, mandated to provide international protection and seek permanent solutions for the problem of refugees, wherever they arise.
2. The other, complementary aspect of UNHCR's mandate was directed towards the promotion of a closer and more effective cooperation with governments, to whom the Organisation should provide assistance in order to "facilitate the voluntary repatriation of such refugees, or their assimilation within new national communities."1
3. The protection of refugees remains today UNHCR's rationale and reasoning. The basis of all activities of the Organisation is the Convention Relating to the Status of Refugees, adopted on 28 July 1951.
4. The Convention defines a refugee as a person who " (…) owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence (…) is unable or, owing to such fear, is unwilling to return to it."2
5. In order to take into account new refugee movements and phenomena and to broaden the Convention's application to cover protection needs of newly emerging refugee groups, the Convention was complemented in 1967 by a Protocol Relating to the Status of Refugees, abolishing the 1951 dateline.3
6. The Parliamentary Assembly is convinced that the 1951 Geneva Convention is more than ever considered as the basic and universal instrument for ensuring effective refugee protection. The Assembly recognises and promotes the principles contained in the Convention and offers its full support to UNHCR to implement them.
7. One of the core principles of the Convention to which the Assembly frequently refers to is the principle of non-refoulement (Article 33) stipulating that refugees should not be returned to face persecution, or the threat of persecution. The Assembly has also looked at the principles stating that protection must be offered to all refugees without discrimination, and that persons escaping persecution may have to leave their country and enter another country in an irregular manner. Accordingly, refugees should not be penalised for having entered into or for being illegally in the country where they seek asylum, and given the very serious consequences the expulsion of refugees may have, such a measure should only be adopted in exceptional circumstances stemming from national security or public order concerns.
8. The Assembly wishes to underline that cooperation of Council of Europe member States with the United Nations High Commissioner for Refugees is essential if effective protection to persons in need is to be implemented.
2. UNHCR's protection mandate
9. The 1951 Convention has entrusted UNHCR with supervisory functions.4 This role has allowed UNHCR to closely collaborate with state parties to implement the provisions of the Convention. In Western Europe, UNHCR is directly involved in certain national status determination procedures (for example in Spain and in France), consulted in the framework of the EU harmonisation process and associated with the development of refugee-related legislation.
10. UNHCR remains also involved in many of the new member States of the Council of Europe, trying to develop asylum systems and standards respectful of the 1951 Convention. These capacity building activities require dissemination and promotion of the 1951 Convention, as well as training for, inter alia, government officials, lawyers and judges in the concerned states.
11. UNHCR, therefore, needs continuous material and political support for the implementation of its mandate in Europe, not least in view of the fact that its activities in Central, Eastern and South-Eastern Europe are clearly complementary to its work in Western Europe. The development of a comprehensive and balanced asylum regime will improve the treatment of asylum seekers throughout the continent.
3. Principles and practice: implementation of the Convention
3.1 Reservations and accession
12. The 1951 Convention allows state parties to limit the recognition of refugee status to refugees originating from Europe. Some state members of the Council of Europe, like Malta and Turkey, have retained this possibility, excluding from their refugee definition persons in need of protection originating from other parts of the world.
13. The Parliamentary Assembly is of the opinion that this geographic limitation, which the 1967 Protocol intended to remove5, is a relic of the past conceptions prevailing in international refugee law. It therefore reiterates its request made already in Resolution 1440 (Restrictions on Asylum in the member States of the Council of Europe and the European Union) for the review of such reservations.
14. The other matters covered by reservations are related to the socio-economic rights which refugees lawfully resident in the state parties should enjoy. The 1951 Convention provides that refugees should receive treatment as favourable as other aliens or, concerning certain rights, equivalent to those enjoyed by nationals. States such as Austria and Latvia have indicated that they considered some of those provisions as mere recommendations. Others, such as Finland, Denmark, Iceland, Sweden and Norway have mentioned that refugees could not pretend to acquire equivalent employment rights as those granted to their nationals in each other's territories.
15. The Parliamentary Assembly calls for a review of these reservations, considering notably that the Heads of States and Governments agreed during the European Council of Tampere (October 1999) that foreign nationals, including refugees should receive a treatment similar to the one of EU nationals.
16. Four of the member States of the Council of Europe6, in particular Moldova and Ukraine, which are host to various groups of persons in need of international protection, have not yet acceded to the 1951 Convention. The Parliamentary Assembly calls on these states to consider accession to the 1951 Convention, in order to ensure that all Council of Europe member States have at least common international standards in the area of asylum.
3.2 Effective implementation
17. In 2000, the United Kingdom became the largest recipient of asylum applicants in Western Europe.7 Germany ranked second, followed by the Netherlands, Belgium and France.8 The rise in asylum applications has politicised the asylum debate and States have reacted to the public and political pressure by introducing further restrictions on access to their territories and to asylum procedures. Among other mechanisms developed, Council of Europe member States have adopted instruments such as the Dublin Convention and have concluded readmission agreements with non-EU member States. Furthermore, these states have also the tendency to look to temporary or subsidiary protection for persons in need rather than to the 1951 Convention refugee status.
18. While it is true that Europe is facing a complex phenomena of composite migration flows, a closer look at the countries of origins of the asylum seekers arriving in Europe reveals that they mostly come from places also facing important political disturbances. Yugoslav nationals were the largest asylum group in 2000, followed by Iraqis, Afghanis and Iranians.9 It should also be pointed out that Europe's share of the worldwide refugee and asylum seekers populations is of respectively 26% and 44 %.10 Whereas Europe receives a high percentage of the total asylum-seekers population11, it hosts nearly the same proportion of refugee populations as less wealthy and prosperous regions.12
19. The Parliamentary Assembly believes that proper resources should be devoted by the member States to the implementation of the 1951 Convention and that asylum and immigration policies should make a clear distinction between refugee protection and immigration control.
3.3 Public awareness
20. While recognising that member States have some legitimate concerns related to the increasing complexity and volume of migration flows to/within Europe, the refugee issue is often highly charged and exploited for political purposes, exaggerating the supposed costs of asylum seekers and refugees on their host societies. Given the current socio-economic difficulties faced by many Council of Europe member States, this perceived burden leads, in its ultimate form, to an increase of racism and intolerance. Changing the way in which host societies view the benefits and burdens of protecting refugees, constitute a means of reconciling national interests with refugee rights.
21. The Parliamentary Assembly notes that there is a tradition of generosity and hospitality towards refugees in many of the member States of the Council of Europe. These traditions and cultural values should be mobilised through different channels, such as schools and the media, in order to raise public awareness to the plight of refugees. To desensationalise the issue, better information is needed about the refugees themselves, where they come from and why. There should be greater emphasis on the positive contribution they make to the host societies in which they live. In this context, the Assembly believes that a more responsible media and political coverage of refugee issues is necessary.
22. UNHCR and NGOs have already adopted this communication strategy, but state members of the Council of Europe should also be more sensitive to this approach. States in which refugee matters have recently emerged should progressively adapt their policies but also be provided with the necessary financial and technical support for this purpose.
4. Looking to the future: global consultations
23. Recognising that the refugee problem is universal in character and that crafting responses to address many of today's issues is best approached on the basis of multilateral cooperation, UNHCR has decided to launch in October 2000 a process of Global Consultations on International Protection. This is a multilateral initiative aimed at promoting the full and effective implementation of the 1951 Convention, and at developing new approaches, tools and standards to ensure its continuing vitality and relevance. States worldwide have expressed a high level of interest in and support for the Global Consultations.
24. The Consultations have been designed along three parallel tracks. The first track seeks to reaffirm the commitment of state parties to the 1951 Convention. This goal will be pursued through a Ministerial Meeting of the State Parties, organised by the Swiss Government and UNHCR on 12 December 2001 in Geneva (Switzerland). The second track will provide a forum to take stock of developments in refugee law and to examine a number of emerging issues. The third track will look at a number of protection policy issues not fully covered by the 1951 Convention.
25. The Parliamentary Assembly welcomes this initiative and encourages member States the Council of Europe to fully engage in the Global Consultations. The Consultations represent a unique opportunity to renew and revitalise refugee protection in Europe and elsewhere and to demonstrate that the commitments made some 50 years ago were not simply governed by the circumstances.
5. Conclusion
26. The 1951 Convention Relating to the Status of Refugees is the cornerstone of the international protection regime. It provides basic and universal criteria to distinguish refugees from other categories of migrants.
27. Aware of the potential dangers that over-politicising of refugee and asylum issues develop in Council of Europe member States, and, considering that public responsibility is necessary to ensure a balanced presentation of refugee issues, the Assembly expresses its continued support for UNHCR in its supervisory role under the 1951 Geneva Convention. The Organisation is an appropriate forum for multilateral dialogue and consensus building on the basis of international legal principles. The Assembly urges the member States of the Council of Europe to support and closely cooperate with UNHCR to consolidate the enduring place of the 1951 Geneva Convention in securing international protection for persons in need.
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Reporting committee: Committee on Migration, Refugees and Demography.
Reference to committee: permanent terms of reference.
Draft recommendation unanimously adopted by the committee on 18 May 2001.
Members of the committee: Mr Iwiński (Chairperson), Mrs Vermot-Mangold (1st Vice-Chairperson), Mrs Bušić (2nd Vice-Chairperson), Mr Einarsson (3rd Vice-Chairperson) (Alternate: von der Esch), Mrs Aguiar, MM. Akhvlediani (Alternate: Mukbaniani), Aliev, Aliyev G., Amoruso (Alternate: Brancati), Mrs van Ardenne - van der Hoeven (Alternate: Mr Vos), Mr de Arístegui (Alternate: Mrs Torrado), Mrs Arnold, MM. Begaj, Bernik, Mrs Björnemalm, MM. Van den Brande, Branger (Alternate: Le Guen), Brînzan, Mrs Burataeva, MM. Christodoulides, Cilevičs, Connor, Debarge, Díaz de Mera, Dmitrijevas, Mrs Dumont, Mr Ehrmann, Mrs Err, Mr Evangelisti (Alternate: Brunetti), Mrs Fehr, Mrs Frimannsdóttir, MM. Galoyan, Hordies, Ilaşcu (Alternate: Mocioi), Ivanov, Jařab, Lord Judd, MM. Karpov, Kolb, Koulouris, Kozlowski, Laakso, Lauricella, Liapis, Libicki, Mrs Lörcher, MM. Loutfi, Luís, Mrs Markovska, MM. Mularoni, Mutman, Norvoll, Oliynyk, Mrs Onur, MM. Ouzký, Popa, Pullicino Orlando, Risari (Alternate: Martelli), Rogozin, Rusu, Saglam, von Schmude, Schweitzer (Alternate: Mrs Wurm), Mrs Shakhtakhtinskaya, Mr Slutsky, Mrs Smith, Mrs Stoisits, MM. Szinyei, Tabajdi, Tahir, Telek, Tkáč, Udovenko (Alternate: Gaber), Wilkinson, Wray, Yáñez Barnuevo (Alternate: Agramunt), Mrs Zwerver, ZZ… (Mr Brunhart).
N.B. The names of those members present at the meeting are printed in italics.
Secretaries of the committee: Mr Lervik, Mrs Nachilo, Mr Adelsbach.
1 Article 8 c) of UNHCR Statute, 14 December 1950.
2 Article 1 A(2) of the 1951 Convention Relating to the Status of Refugees.
3 The scope of the Convention was originally confined to people who had become refugees as a result of the events which took place before 1 January 1951.
4 Article 35 of the 1951 Convention relating to the Status of Refugees.
5 see also Turkey/EU Accession Partnership document dated 8 November 2000 which mentions the lifting of the geographical reservation as a medium-term objective.
6 Andorra, Moldova, San Marino and Ukraine.
7 The UK received 97,860 asylum applications in 2000. (UNHCR press release, 26 January 2001).
8 Germany received 78,000; the Netherlands 43,900; Belgium 42,690 and France 38,500. (UNHCR press release, 26 January 2001).
9 Yugoslav nationals submitted 52,300 asylum applications in Europe in 2000; Iraqis 34,700; Afghanis 28,800 and Iranians 27,100. (UNHCR press release, 26 January 2001).
10 UNHCR Global Appeal 2001.
11 Nearly 49% of all asylum seekers are in North America and the Caribbean region (605,620 asylum seekers). Comparatively, in the area covered by the Council of Europe there are 538,330 asylum seekers. UNHCR Global Appeal 2001.
12 Sub-Saharan Africa has a total refugee population of 3,339,180 (28%) and South-West Asia 3,037,700 (26%).